CXST and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 222
•15 February 2021
CXST and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 222 (15 February 2021)
Division:GENERAL DIVISION
File Number(s): 2020/7920
Re:CXST
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:15 February 2021
Place:Sydney
The reviewable decision is set aside and, in substitution, the mandatory cancellation of the Applicant’s Class BF transitional (permanent) visa is revoked.
................................[sgd]..................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – Migration Act 1958 – mandatory visa cancellation – section 501(3A) –application of Direction No. 79 – weighing of primary and other considerations – safety of the Australian community – expectations of the Australian community – second cancellation – armed robbery – heroin addiction – methadone treatment – no evidence as to treatment options if removed – rehabilitation – duty of Respondent to provide information - decision under review set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 33, 43
Migration Act 1958 (Cth), ss 499, 500, 501, 501CA, 501G
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56 (24 April 2020)
Hood and Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs (Migration) [2020] AATA 1123
LPGJ v Minister for Home Affairs [2019] FCA 1893
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Jokic [2020] FCA 1434
MKNT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4089
Pennie v Minister for Home Affairs [2019] FCAFC 129
Pennie v Minister for Home Affairs [2019] FCA 489
Ratu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3448
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Taualii v Minister for Home Affairs [2019] FCA 2013
Tsang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4319
YKZZ and Minister for Home Affairs (Migration) [2019] AATA 3248SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
15 February 2021
INTRODUCTION
The Applicant seeks review of a decision of a delegate of the Respondent (“the Minister”) made on 23 November 2020 to not revoke the decision made under subsection 501(3A) of the Migration Act 1958 (Cth) (“the Act”) to cancel the Applicant’s Class BF transitional (permanent) visa (“the reviewable decision”).
BACKGROUND
In 2019 the Applicant and two co-offenders committed an armed robbery. They raided a jewellery store, terrorised the employees, and smashed various cabinets in order to get to the jewellery therein. A courageous member of the public intervened, whereupon they fled in a stolen vehicle. They were pursued by a member of the public in a four-wheel drive. When their vehicle broke down they commandeered another car and ejected the occupants, two young children and their mother. The hijacked car was driven over rough ground and sustained some damage, breaking down, and they fled on foot. The car burst into flames. The three men ran away but were subsequently apprehended.
The Applicant was convicted on one count of robbery armed with an offensive weapon, and one count of aggravated assault with intent to take and drive motor vehicle. On 20 November 2019, he was sentenced to an aggregate sentence of six years six months with a non-parole period of four years.[1] He received a 25% discount for a timely plea.[2]
[1] G2/29.
[2] G2/41.
The sentencing judge noted that the Applicant started using drugs as a teenager, that his attendance at school suffered and he did not complete high school, and that his employment record is very limited. He had a job for about a year cleaning cars. He had minimal contact with mental health services and some time ago he attempted drug rehabilitation on several occasions, but unsuccessfully. There is a diagnosis from a psychiatrist of poly-substance dependence and likely social anxiety disorder, but no diagnosis of self-harm or suicide. The judge also referred to a long-term relationship which produced a son, who is now 18. The Applicant’s son was raised largely by the Applicant’s mother.
The sentencing judge found special circumstances, based upon a long history of drug use and a history of institutionalisation. His Honour therefore found that he was not an appropriate subject for general deterrence, although there was nothing in his record to favour leniency.[3]
[3] G2/39.
PROCEDURAL HISTORY
On 10 January 2020, the Applicant’s BF visa[4] was mandatorily cancelled under subsection 501(3A) of the Act.[5] The Minister’s delegate was satisfied that the Applicant had a substantial criminal record,[6] and therefore failed the character test,[7] and that he was serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, State or Territory, thus satisfying the conditions for mandatory cancellation under the subsection.
[4] Granted on 1 September 1994; G2/91.
[5] G4/168.
[6] The phrase ‘substantial criminal record’ is defined in subsection 501(7) of the Act. It includes circumstances where a person has been sentenced to a term of imprisonment of (or multiple terms of imprisonment that together equal) 12 months or more: the Act, paragraphs 501(7)(c) and (d).
[7] A person with a ‘substantial criminal record’ is deemed to fail the character test: the Act, paragraph 501(6)(a).
When a visa is mandatorily cancelled under subsection 501(3A), the Minister must give the person concerned written notice of the cancellation setting out the original decision and particulars of the relevant information, and inviting the person to make representations to the Minister about revocation of the original decision.[8]
[8] The Act, paragraphs 501CA(3)(a) and (b).
Under subsection 501CA(4) the Minister may revoke the original decision if ‘the person makes representations in accordance with the invitation’ and either the Minister is satisfied that the person passes the character test, or there is ‘another reason’ why the original decision should be revoked. If the conditions of the subsection are satisfied, then the mandatory cancellation decision must be revoked.[9]
[9] See YKZZ and Minister for Home Affairs (Migration) [2019] AATA 3248, per Deputy President Constance, at para [32], citing Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, where Collier J at [31] considered that in subsection 501CA(4) “may” is to be interpreted as “must”.
The Applicant responded to the invitation to make representations by completing and signing a Personal Circumstances Form (Response to matter under s 501 of the Migration Act) on 3 February 2020.[10] That document was received by the Department on 14 February 2020.[11] On 23 November 2020, the Minister’s delegate, having considered the Applicant’s representations, made a decision (being the reviewable decision, as above) to not revoke the mandatory visa cancellation.[12]
[10] G2/53-69.
[11] G2/53.
[12] G2/6-22.
Application to the Tribunal and conduct of the hearing
On 2 December 2020, the Applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the reviewable decision.
The matter was heard over two days on 2 and 3 February 2021 by videoconference. At the time of the hearing, the Applicant was at the Junee Correctional Centre. The Applicant was unrepresented at the hearing.
Materials before the Tribunal consisted of:
(a)An undated letter written by the Applicant’s brother, filed on 28 January 2021. The Applicant’s brother also gave evidence by telephone on 3 February 2021;
(b)The Respondent’s Statement of Facts, Issues and Contentions (SFIC);
(c)The Section 501 ‘G’ Documents;
(d)A Bundle of Summonsed Material (with documents indexed SM1-SM5) and three Further Bundles of Summonsed Material (indexed SM6-SM7, SM8, and SM9 respectively), containing documents produced under summons and relating to the Applicant’s criminal offending, some 945 pages in total.
The Applicant did not file a SFIC because, as he said, he did not know how to do so.
ISSUES TO BE DETERMINED, RELEVANT LAW AND POLICY
The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.
The Tribunal may revoke the original decision if the Tribunal is satisfied:
(a)that the Applicant passes the character test as defined by paragraph 501(6)(a) and subsection 501(7) of the Act; or
(b)that there is another reason why the original decision should be revoked: paragraph 501CA(4)(b).
There is no dispute that the Applicant fails the character test; in that he has been convicted and sentenced to a term of imprisonment of 12 months or more. The question for the Tribunal to decide is therefore whether there is ‘another reason’ to revoke the mandatory cancellation of the Applicant’s visa.
In making a decision under subsection 501CA(4), the Tribunal is bound to comply with any written directions given under subsection 499(1) of the Act: subsection 499(2A). The Minister has given such written directions: the relevant direction is Direction No. 79 –Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction”). The Direction commenced on 28 February 2019. The Direction sets out various principles, discussed below, that must be observed together with the primary and other considerations that must be taken into account where relevant.
THE DIRECTION
Part C of the Direction governs the considerations relevant to determining whether the mandatory cancellation of a non-citizen’s visa will be revoked: see sub-subparagraph 7(1)(b).
There are a number of important rules governing the way in which considerations must be taken into account. These may be summarised as follows:
(a)Considerations are divided into primary and other considerations which must be taken into account by decision makers: see subparagraph 8(1);
(b)Information and evidence from independent and authoritative sources should be given appropriate weight: see subparagraph 8(2);
(c)Both primary and other considerations may weigh in favour of, or against, whether or not to revoke a mandatory cancellation: see subparagraph 8(3);
(d)Primary considerations should generally be given greater weight than the other considerations: see subparagraph 8(4); and
(e)One or more primary considerations may outweigh other primary considerations: see subparagraph 8(5).
Subparagraph 13(2) sets out the ‘primary considerations’. They are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Subparagraph 14(1) sets out the (non-exhaustive) ‘other considerations’:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
THE RESPONDENT’S DUTY TO PROVIDE INFORMATION
At the hearing, the Tribunal was not provided with the Applicant’s prison records, or indeed any information regarding his current security classification. Nor was the Tribunal provided with any medical reports bearing upon his physical or mental health, or current treatment programs.
The Tribunal was not provided with any information relevant to treatment programs, accommodation or social welfare that may be available to the Applicant if removed to the United Kingdom at the end of his sentence.
Such information is relevant to deciding under subsection 501CA(4) whether there is ‘another reason’ why the mandatory visa cancellation should be revoked.
Subsection 33(1AA) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) provides that the decision-maker must use his or her ‘best endeavours’ to assist the Tribunal to make its decision in relation to the proceeding:
Decision‑maker must assist Tribunal
(1AA) In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.
Paragraph 33(2A)(a) of the AAT Act provides that the Tribunal may ‘require any person who is a party to the proceeding to provide further information in relation to the proceeding’.
The Respondent contends that these provisions, properly understood, do not impose on the Minister, in assessing representations made by the Applicant in requesting revocation of the mandatory cancellation, a duty to seek out and obtain information relevant to the mandatory considerations.
The Respondent relies on the decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Jokic [2020] FCA 1434. In that case, Jagot J noted that the undoubted power to direct a decision-maker to provide further information should not be used where, in the opinion of the Tribunal, the decision-maker has failed to provide sufficient information to enable a finding to be made. A direction in those terms may amount to jurisdictional error. Her Honour stated (emphasis added) at [14]-[18]:
The Tribunal is not bound to remit a matter for further information to be obtained by the Minister merely because the Tribunal considers that there is insufficient information for it to consider the considerations made relevant by Direction 79. The Tribunal was in error in so stating ... The fact that Direction 79 includes mandatory relevant considerations does not mean that when the Tribunal has insufficient information to enable such consideration that the Tribunal is bound to require further investigations to be undertaken. The Tribunal is entitled to find that it cannot make any finding about a relevant consideration in such circumstances, recognising that it is essentially for the person seeking revocation of the visa cancellation to put such information as the person sees fit before the decision-maker to persuade the decision-maker to revoke the original decision. (emphasis added)
Accordingly, in Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92; (2008) 102 ALD 22 at [24] the Full Court explained that an obligation to consider a matter does not include an obligation to make a finding. In Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28; (2014) 219 FCR 504 Buchanan J said at [27]:
In my respectful view, there could be no objection in any case to the AAT concluding that the best interests of a child did not weigh either for or against the cancellation of a visa, so long as the available material was assessed conscientiously. That is not the same as not stating a conclusion about the issue at all. Similarly, in a case where the evidence did not permit a proper conclusion about the issue, there could be no objection to the AAT saying so, as it did in the present case.
Barker J said at [69]:
Secondly, unless it can be said in a particular case that there is no relevant information or evidence concerning the child, then I consider a decision maker must do the best they can to make the determination on the available evidence, however difficult or sub optimal that decision making process may be considered to be by a decision maker and regardless of how unreliable they may consider a determination made in such circumstances may be as a result.
Perry J said at [119]:
Once the Tribunal found that, by reason of the paucity of evidence, it could not be satisfied about where the best interests of Mr Paerau’s minor children lay, and that was a finding lawfully open to it, there was nothing further for the Tribunal to do with respect to that consideration.
In He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41 at [76] the Full Court said:
In some cases, the Tribunal’s answer may be that there is no material, or insufficient material, to be able to form a conclusion on a prescribed matter: cf Paerau at [27], [69] and [119]. However, there must be an answer, or, in other words, a finding, even if the finding is that no conclusion can be reached upon the matter.
Under subsection 501CA(4) of the Act, the decision-maker (and the Tribunal ‘standing in the shoes’ of the original decision-maker), has a legal duty to address the representations made by the Applicant, and to take those representations into account in considering whether or not to revoke the cancellation decision.[13]
[13] Taualii v Minister for Home Affairs [2019] FCA 2013 at [96] per Anderson J; Pennie v Minister for Home Affairs [2019] FCA 489, Banks-Smith J at [61].
The onus is on the Applicant to establish an evidentiary basis for revocation under subsection 501CA(4). This applies to the original decision-maker, and to the Tribunal ‘standing in the shoes’ of the original decision-maker. Subsection 501CA(4) does not confer upon the decision-maker, or the Tribunal, inquisitorial powers. Neither the decision-maker, nor the Tribunal, has an obligation to search out such information, even if such information is readily available.
As noted by the Full Court in Pennie v Minister for Home Affairs [2019] FCAFC 129, at [14]:
The primary judge correctly stated that it was for Mr Pennie to put before the Minister what he wanted the Minister to take into account and it was not for the Minister to undertake his own research or investigate for himself the likelihood or otherwise of Mr Pennie finding housing in Ireland, or obtaining social welfare or adequate health care. The Minister had no legal duty to make such inquiries for himself nor to make findings of fact as to whether Mr Pennie would be entitled to social and housing welfare if removed to Ireland: Maioha at [41]-[46] (Rares and Robertson JJ). His legal duty was to address the representations made and to take them into account in considering whether to revoke the cancellation decision.
If no finding can fairly be made on a mandatory relevant consideration, the Tribunal must so find. But there is no power in the Tribunal to rectify the matter by compelling the original decision-maker to provide supplementary information. The power in paragraph 33(2A)(a) of the AAT Act to require a party to provide ‘further information’ must be exercised within jurisdictional limits.
The absence of evidence on a particular matter may well lead a decision-maker to respectfully conclude, echoing Barker J, that the decision-making is “sub-optimal”. Prison and health records bear directly on the question of rehabilitation. The absence thereof is a clear case in point.
THE APPLICANT’S CASE FOR REVOCATION
In setting out his reasons for why the mandatory cancellation should be revoked, in the request for revocation of that cancellation sent to the Department, the Applicant said:
I have been living in Australia since I was about 7 months old. I have had a serious drug problem since my teenage years. And taking full responsibility for my actions. I am at a time in my life when I need to stop being selfish and grow up. My son is growing up so fast and I have been the only parent in his life he has no connection with his mother. My mother is currently in hospital suffering from terminal cancer. I would like to be able to be there to help care for her as she has stuck by me through thick and thin.[14]
[14] G2/56.
He ticked the appropriate box to authorise the Department to seek personal or sensitive information about him “where doing so is relevant to, and will assist with, the processing of your request for revocation”.[15] It was contemplated on the form that this information may include prison and parole reports.
[15] G2/57.
He gave his father’s name and place of birth but could not provide any other information about him. He gave his mother’s name. He did not know the date and place of his first arrival in Australia. He said that he travelled to Australia with his mother and his grandmother or ‘Nan’.[16]
[16] G2/60.
He was asked to describe his relationship with each of his minor children. He stated:
I live with my son and my mum at Campbelltown. I’ve always been in my son’s life and have a very good relationship with him. He loves soccer. I used to train and coach him and his team.[17]
[17] G2/62.
He was asked to describe any impact on such minor children in the event of a negative s 501 outcome. He stated:
It would have i [sic] big effect on my son. He would be devastated loosing [sic] his father.[18]
[18] G2/62.
He also referred to his brother’s two minor children and stated that he had a ‘very good’ relationship with them.[19]
[19] G2/64.
In relation to concerns about being returned to the UK, he stated:
I am scared of being sent back no family support.[20]
[20] G2/67.
He was asked about other problems he might face upon return and said:
Housing, addiction.[21]
[21] G2/67.
In relation to any positive contributions he has made to Australia, he referred to:
Soccer coach, volunteer doing reptile shows at schools.[22]
[22] G2/68.
With respect to hardship to family members that would result, he stated:
My family members most of all [my] mother and son.[23]
[23] G2/68.
In relation to impediments to return, in respect of health conditions, he referred to Methadone – Opioid treatment. He stated that he receives methadone every day and is currently being treated by a methadone doctor at Justice Health.[24]
[24] G2/68.
Regarding the strength, nature and duration of ties to Australia, specifically his history of employment and study, he referred to a period of employment with a car retailer as a detailer for an unspecified duration, and stated that he had completed Year 9 and various TAFE courses.[25]
[25] G2/69.
The information contained in the request for revocation of the mandatory visa cancellation is supplemented by the oral evidence given by the Applicant before the Tribunal.
Further, in his written application to the Tribunal, the Applicant stated:
Certain circumstances have changed. My mother passed away earlier this year. She was looking after my son. He is living with my mum’s partner now. I am also waiting for appointment with doctor about mental health.[26]
[26] G1/4.
IS THERE ANOTHER REASON WHY THE MANDATORY CANCELLATION DECISION SHOULD BE REVOKED?
I now turn below to an assessment and evaluation of the factors for and against revoking the mandatory cancellation decision.
PRIMARY CONSIDERATION 1 (PC1): PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Subparagraph 13.1(1) of the Direction provides that when considering the protection of the Australian community, decision-makers must have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
Subparagraph 13.1(2) further provides that I should consider:
(a) the nature and seriousness of the non-citizen’s conduct to date; and
(b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct
The Applicant has a long history of offending, commencing on 15 March 1996 when he received a $50 fine for malicious damage. He has multiple convictions as a juvenile for break enter and steal and larceny and goods in custody, for which he received a variety of good behaviour bonds and control orders. He also has multiple convictions as an adult offender, including convictions recorded in the Drug Court.
The extent of the Applicant’s criminal offending is detailed in a National Criminal History Check dated 10 January 2020 before the Tribunal,[27] under documents produced by summons, and as submitted by the Respondent.
[27] G2/23-28.
In considering the nature and seriousness of the Applicant’s criminal offending or other conduct, the Tribunal must have regard to the relevant factors identified in paragraph 13.1.1 of the Direction. I consider these below.
Violent and/or sexual crimes – 13.1.1(1)(a)
The Tribunal must have regard to the principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.
Except for the most recent offending, it might be said that any violence in the Applicant’s offending was incipient in nature. His earlier offending was not physically violent in nature and did not involve the infliction of physical harm.
The offending which triggered the mandatory cancellation in the present proceedings is more problematic. As noted above, the Applicant and his two co-offenders dispossessed a mother and her two children of their motor vehicle, with threats of violence. This is known colloquially as ‘car-jacking’. It is a very serious offence. Although actual violence was not inflicted on the victims, the mental trauma was acute.
Crimes of a violent nature against women or children – 13.1.1(1)(b)
The Tribunal must have regard to the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed, which in respect of the offence below in this case was an indicative sentence of three years six months with a non-parole period of two years.[28]
[28] G2/42.
The offence of aggravated assault with intention of taking a motor vehicle is not defined in terms of violence against women or children. However, the circumstances of the offence are relevant. The victims in this case were a woman and her children. The Applicant and his two co-offenders did not target the vehicle because of the driver’s gender. They just wanted a getaway car. It is merely contingent that the victims on this occasion included a woman made highly vulnerable as the carer of her two children. The whole incident was understandably described by the judge as “terrifying”.[29]
[29] G2/40.
Vulnerable members of the community or government representatives/officials –13.1.1(1)(c)
Crimes committed against vulnerable members of the community, or government representatives or officials, are serious. At least one of the Applicant’s offences, resist officer in execution of duty, involved the police, which must be considered serious.
I repeat the comment made above in relation to the vulnerabilities of a mother and two children involved in the car-jacking episode.
The sentence imposed – 13.1.1(1)(d)
For his most recent offending, the judge sentenced the Applicant as follows:
… you are convicted of one count of robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act. After deduction of 25% the indicative sentence for that offence will be a sentence of five years imprisonment. For the offence of aggravated assault with intent to take and drive motor vehicle you are convicted of that offence, I sentence you to imprisonment, an indicative sentence, that indicative sentence is three years six months with a non-parole period of two years. Under s 53A there will be an aggregate sentence, that aggregate sentence is six years six months with a non-parole period of four years. That sentence is to begin on 20 December 2017 and expire on 19 December 2021. The balance of the sentence expires on 19 June 2024. Your earliest release date, subject to the determination of the Parole Board, will be 19 December 2021 and the balance of your sentence will expire on 19 June 2024.[30]
[30] G2/36.
The frequency of offending – 13.1.1(1)(e)
The Respondent notes that the Applicant’s offending “has been frequent and unrelenting over an extended period” and that it “[has] occurred almost every year from 1996 to the present” excluding the periods that the Applicant spent in prison, and that he has committed over 70 criminal offences, including, inter alia, crimes of the following nature:
A. stealing and similar offences;
B. car stealing;
C. assault;
D. stalking and intimidation;
E. possession of prohibited drugs;
F. resisting an officer;
G. non-compliance with undertakings and conditions relating to bail;
H. obtaining money by deception;
I. unlawful possession of property; and
J. unlawful entry into inclosed lands.[31]
[31] RSFIC, [27].
The Applicant’s offending commenced in 1996. His criminal history is that of a persistent offender.
Apart from the robbery offences, he committed the offence of taking or being carried in a conveyance without the consent of owner (a motor vehicle) on several occasions:
On 19 June 1996 - Lidcombe Children’s Court
On 29 March 2001 - Hornsby Local Court
22 July 2009 - Liverpool Local Court
14 June 2012 - Parramatta Drug Court
17 October 2012 - Wagga Wagga Local Court
The 2011 offences were committed within a narrow time frame of one month after a period of good behaviour. There is a considerable period between the robbery offences committed as a juvenile and the later offending as an adult.
The cumulative effect of repeated offending – 13.1.1(1)(f)
The cumulative effect of the Applicant’s offending, in terms of an assessment of the nature and seriousness of his offending, is to add to its seriousness. The consequence of his repeated offending is that it has served to diminish his path to rehabilitation.
Offending to obtain money to support a drug habit has become his survival strategy when at large, resulting in ongoing involvement with law enforcement and an escalating danger to the public. It has also led to a degree of institutionalisation, for in prison he is fed and housed and provided with treatment (methadone) for his drug addiction.
False or misleading information – 13.1.1(1)(g)
There is no evidence of such behaviour.
Offending after an administrative warning – 13.1.1(1)(h)
This is the second occasion on which the Applicant’s visa has been mandatorily cancelled. The Applicant’s visa was previously cancelled under subsection 501(3A) of the Act on 4 February 2015. On that occasion, in his request to revoke that cancellation, the Applicant said:
I have one son in the community with whom I normally reside. I plan to resume daily contact with my son who lives with my mother after release.
I will be working with my brother after release (handyman business).
I have no family connections in the UK and have never travelled there since arrival.[32]
[32] G2/73.
The Minister’s delegate considered the Applicant’s representations and decided to revoke the mandatory cancellation on 3 August 2017. The Applicant was warned that future conduct may result in further steps being taken to remove him from Australia. The letter of that date stated:
Please note: this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you. The decision-maker has issued the following warning to you:
[The Applicant] needs to be absolutely aware that if he reoffends his visa may again be cancelled and he may be returned to the United Kingdom permanently. [The Applicant] also needs to be aware that once [his] child becomes an adult, [he] would lose any strong grounds in his favour preventing removal following any further convictions. Any further offending would be viewed very seriously by the Department and [he] needs to properly address the causes of his offending. It is in [his] best interest not to reoffend if he wishes to ensure he remains in Australia to care for his son.[33]
[33] G2/88.
The Applicant signed the acknowledgment form on 3 August 2017.[34]
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
[34] G2/90.
I note the risks specifically identified at subparagraph 13.1.2(1) of the Direction to which I must have regard cumulatively:
(a)the nature of harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of reoffending.
If the Applicant engages in further similar acts it is not unlikely that members of the community will be traumatised and may even suffer personal injury.
In terms of the likelihood of reoffending, the Tribunal is required to take into account available information and evidence on the risk of the non-citizen reoffending (noting that decisions should not be delayed in order for rehabilitation courses to be undertaken).
This last point is pertinent to a submission made by the Applicant that the timing of the cancellation in this case was prejudicial to him, in that he still has almost a year to serve until the end of his non-parole period, and more than three years to run until the completion of the head sentence on 19 June 2024. He said that he would have more information relevant to rehabilitation to put to the Tribunal in the future.
Section 500(6L) of the Act provides that a decision in the present application must be made within 84 days of the original decision, which in the present case is 15 February 2021.[35] It is apparent that a delay for the purposes of enabling the Applicant to complete rehabilitation programs is not permitted.
[35] Subsection 500(6L) of the Act provides that if the Tribunal has not made a decision within the period of 84 days after the day on which the Applicant was notified of the decision under review in accordance with subsection 501G(1) of the Act, the original decision of the Minister is taken to have been affirmed by the Tribunal under section 43 of the AAT Act at the end of that period.
I turn then to the issue of recidivism or risk assessment contained within sub-subparagraph 13.1.2(1)(b) of the Direction. The Tribunal is required to consider, on the information available to it, the likelihood of the Applicant engaging in further criminal or other serious conduct. Any repetition of such behaviour, particularly in the company of others, carries with it a high risk of physical or mental harm to members of the community.
The main factor predisposing the Applicant to criminal conduct is his drug addiction. The Applicant is presently enrolled in a methadone program, although the Tribunal has not been provided with details or information about this program.
I also note that the Applicant’s brother told the Tribunal that he would provide accommodation and employment to the Applicant if he is released into the community. In an ideal world, it is not impossible that the criminogenic underpinnings of the Applicant’s offending will be moderated in such a caring environment, and that the prospect of further offending would drop significantly. However, a realistic assessment must take into account that, within a short period of release after a period of incarceration, he reoffended in 2019, and this involved property damage and threatening conduct which caused terror in his unfortunate victims. I also note that when he was previously released from prison and lived with his mother, his offending continued.
The Applicant expressed deep remorse and disgust with his most recent offending. He did not expect the Tribunal to believe him, given his record. I note the following passage from his evidence to the Tribunal:
And do you think you would be able to overcome those same troubles on the outside if you were released into the Australian community?---Yes, honestly - honestly - like, I honestly know I could because the simple fact that, like, you know what I mean, like, if I did get to stay in Australian, that’d be a blessing, you know what I mean, and like, I - like, I wouldn't throw it away like I did last time. You know, like, that’d be my main factor, my son. You know, like my son, my nieces and nephews. First of all, I have to do it for myself, but like I said, I’m 40 years old now. I’ve done most of my life in gaol, you know, like it’s getting the point, like, when - when my mum died and that, like, I was - even before that, you know, I just thought, I’m over it, you know? Yes, I just was sick of it, like, sick of the whole - whole process. Yes.
And what’s different this time than every other time you’ve been released before? The last time you were released from Villawood?---Just the fact that this time I was locked up. Like I said, I lost my mum. I couldn't go and see her before she died, like, you know, in hospital or anything, and it just - I don't know, what did you call it? A realisation, you know what I mean? Like I said, I’m 40 years old, you know? Like my son’s 18. I didn't get to teach my son how to drive. I didn't get to do nothing, you know what I mean? Like I - I just want to be around for my family, you know? Like, I don’t - I don’t - yes. I’ve seen the doctors the other week here and they reckon that I’ll probably have to get on medication. They said - they diagnosed me saying I’ve got social anxiety or something, you know? Saying that when I go out - like, when I used to go shopping with my mum, my mum would know. Like, we’d be shopping and she’d look at me and just give me the keys because she could see, like, I don’t - I don’t - like, it’s weird when I’m out around these people, you know. Yes, so, (indistinct), yes. But, like, I know I wouldn't throw it away again, that's for sure.[36]
[36] Transcript, 2 February 2021, 53.
The Applicant expressed frustration about the challenges of living on the outside, given that his best efforts to obtain employment had failed due, he said, to his long record of imprisonment. He said to the Tribunal, in effect, that he no longer longed to be free and was resigned to a life of imprisonment:
… when I get released from jail I - like, I'm happy I'm at home with my family and that, but, like, last time I was out I applied for a thousand jobs in a week and I got one call back, that was it, and so that's what I mean, it's, like, but when I go to jail, I did all the crime and that, but - and when I get out, like, everything's the same as when I went in, you know what I mean? Like, I don't know if it's a broken system or what it is, you know, like, it's hard to explain it, yes, but it's like I don't have the happiness to get out of jail, I don't, you know, look forward to it, you know, like, my son and my brother and my family, don't get me wrong, I love them with all my heart, but I don't know what it is, you know. Like, I'm not going to sit here and lie, like, when I'm going to get out it's not like - I don't look forward to it, you know.[37]
[37] Transcript, 2 February 2021, 22.
In response to a question about whether the Applicant looked forward to his release he went on to say:
Yes, like, it’s just not as - like, as good as - you know what I mean? Like, when you - you’re happy you’re getting out, you know what I mean, but like I said, you know what I mean, I think it’s just a bit of institute - institutionalised I think it is, you know, like I’m - like, I know I’m getting out and fair enough, I’m happy to get out but everything out there is the same as what it was before I went in, you know what I mean? Just because my life stops, I go to gaol, it doesn't mean everything else just keeps - keeps carrying on, you know. So like, you just get into the same stuff, the same troubles, the same headaches, you know? Unless you’ve got something that you can change it, you know what I mean. That's why I like - like - I wish I do get to stay here, but I know if I stay here at least that big one thing getting a job. I mean, I haven't got all day to sit around and think about - you know what I mean? Like, yes, if I’m active - last time I got out I was looking for a job, but I was also breeding reptiles. Like, I’ve done it since I was a kid, a passion, and I’m selling them on the internet on line, like legally, and - but that doesn't - that's - you can’t have that as a full-time job, you know what I mean, because, you know, it’s not like they have babies every day, so yes. I’d need - at least I’d have that. That’s a hobby and then with the work with my brother, that’s pretty much would keep me busy, you know what I mean? Like, yes.[38]
Behaviour in prison
[38] Transcript, 2 February 2021, 52-53.
The Respondent did not provide the Tribunal with records relating to the Applicant’s security classification in prison. There is no incident report documentation before the Tribunal. It may well be that there is nothing to report. There is certainly no basis for making any adverse finding based upon his conduct in prison. Indeed, the absence of any reports of an adverse nature may provide some evidence for a finding that his behaviour in prison has been good.
Conclusion with respect to PC1
My conclusion with regard to the protection of the Australian community is that it weighs firmly against revocation of the mandatory cancellation.
PRIMARY CONSIDERATION 2 (PC2): THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Subparagraph 13.2(1) of the Direction requires a decision-maker to make a determination about whether cancellation is in the best interests of minor children in Australia who may be affected by cancellation of the Applicant’s visa. The interests of each child should be given individual consideration to the extent their interests differ.
Subparagraph 13.2(2) provides that this consideration applies only if the child is, or would be, under 18 years of age at the time when the decision to cancel the visa is expected to be made.
The Applicant has a son, but he has reached 18 and is no longer to be considered under this primary consideration.
The Applicant has a number of family members living in Sydney and Melbourne, including his grandmother (Nan), his aunt and an uncle, cousins, and a niece of seventeen years of age.[39]
[39] Transcript, 2 December 2021, 46-48.
As to his Sydney family, his brother has two children under 18. They are aged five and seven and live with the brother and his partner.
a) Nature and duration of the relationship
I note that less weight should be given where there have been long periods of absence or limited meaningful contact.
Regarding his brother’s children, he said to the Tribunal relevantly:
Are there any other minor or school children in your life? ‑‑‑ I've got my niece and my nephew.
…
How old are they? ‑‑‑ One's seven and one's five.
Are you involved in their lives at all? ‑‑‑ I am involved in their lives but like you know what I mean I don't - like it might sound silly but I write [my niece] little letters and draw her pictures because she's autistic, you know what I mean, so that's when, when I was out like I used to - when I'd go round there to my brother's I'd sit down and - like that's what my brother said, he goes like she's good you know because I'd sit down and draw - I'm an artist, I'd draw little pictures and that for her you know what I mean. But yes, I do, I love them, you know what I mean, and even though I haven't been out there for that long with them, yes, I think about them all the time. Same with my son, my son's working with my brother, you know what I mean, he's doing the right thing. He didn't stay for his Year 12 but - because mum got sick but he did his Year 10 and he's working and that, you know what I mean. I can't be prouder, you know, like (indistinct), yes, and I miss them all. My brother, my son, my nephews, my nan.
… Do you know how many times you've seen your niece and your nephew? ‑‑‑ Like what do you mean since I've been in gaol?
I mean throughout their lives, both in and out of gaol, how many times have you seen your niece and your nephew? ‑‑‑ (Indistinct) last time I was out, like before I started using and that I'd see them everyday, my niece and nephew.
Since you're inside, how often would you see them? ‑‑‑ I've only seen them a couple of times, like (indistinct) visit at the start and then I've seen [my nephew] one more time and yes, but I still - I write to them and that, like I draw little pictures for them and that but yes, like I haven't seen them as much as what I'd like to see them you know but they didn't really like the idea of them coming to a gaol to visit someone, you know.
When you were out can you explain how often you saw them? ‑‑‑ Every day pretty much. Like they'd come round to my mum - they'd come round to my mum's and that's where I was staying at the time and, yes, we'd go for a swim in the pool or whatever, you know what I mean. Like I'd take them for a walk to the park, yes.
So is it correct in saying that you were at your mother's when they came to visit their grandmother? ‑‑‑ Yes, well I was living there so yes, they were coming to visit their grandmother but like I pretty much interact with them all the time, you know, and walk over the shops with them and that. But everyone was going to my mum's because my mum was sick, you know what I mean, like she had terminal cancer so like they did come round a lot, you know, yes.
Is it correct that you don't have parent or caregiving role for these children? ‑‑‑ No, I don't have a parent role for them or a caregiving role, they're my brother's kids.
With regard to his nieces and nephews in Melbourne, he said that he had little contact with them because of a rift in the family, although that had recently healed because of his mother’s illness.[40]
(b) The extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time before the child turns 18
[40] Transcript, 2 February 2021, 48.
The Applicant is addicted to heroin and requires methadone to control his drug use. The Tribunal has no medical evidence as to whether this treatment provides hope for a permanent cure.
On the basis of the material presently before the Tribunal, it is difficult to see that the Applicant is likely to play a positive role in his niece and nephew’s lives.
The proposal by the Applicant’s brother to offer accommodation to the Applicant is generous and brotherly, but obviously not without certain risks to the integrity of his family unit. The Applicant’s brother has a partner and two young children. Given the Applicant’s earliest release date, the situation will not eventuate before the end of 2021, and may not eventuate until 2024.
The evidence does not permit a finding that the exposure of his brother’s children to the Applicant will be damaging to the children, but there is little to suggest that the Applicant will play a positive role in their lives. On a minor practical note, the children will immediately lose their individual bedrooms. This is perhaps a minor inconvenience in the face of a family emergency; but one cannot discount the possibility of relapse by the Applicant, and any relapse while living with his brother would place his brother’s children and partner in jeopardy. I note that one of the children suffers from autism. The anxiety this situation would create would be an additional stressor, adding to the load this young family would carry, aggravated by the present COVID-19 pandemic.
The Applicant’s desire to assist his brother is laudable. He is undoubtedly in an invidious position.
(c) The impact of the Applicant’s prior conduct, and whether that conduct has, or will have, a negative impact on the child
There is no evidence that the Applicant’s offending has had a negative impact on any of these children.
(d) The likely effect that separation will have on the child
There is unlikely to be any serious impact.
(e) Whether there are other persons who already fulfil a parental role in relation to the children.
There are other reliable adults who provide for the children.
(f) Known views of the children
There is no evidence before the Tribunal.
(g) Evidence of abuse or neglect
There is no such evidence.
(h) Evidence of physical or emotional trauma arising from the Applicant’s conduct.
There is no such evidence.
Conclusion with respect to PC2
The Respondent submits that this primary consideration is neutral. I agree and find that PC2 weighs neither in favour of nor against revocation of the mandatory cancellation. It is therefore a neutral consideration.
PRIMARY CONSIDERATION 3 (PC3) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Subparagraph 13.3(1) of the Direction provides as follows:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision makers should have due regard to the Government’s views in this respect (emphasis added).
I note that subparagraph 6.3(5) provides that:
Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age (emphasis added).
Subparagraph 13.3(1) of the Direction is analogous to paragraph 11.3(1) of Direction No. 65, which was considered by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The majority held that identifying the expectations of the Australian community was not an empirical matter subject to proof. Charlesworth J stated, at [67]:
To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”... it is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”. .... For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.
Her Honour added, at [73]:
[I]t must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction. The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
Stewart J analysed the clause as follows, at [100] et seq. His Honour said:
[100] To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
·non-citizens will obey Australian laws when in Australia;
·it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
·in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
[101] Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.” This limited expression of “community expectations” by the Government is, one would expect, quite uncontroversial, which is an attractive feature given the heterogeneity of views in this area.
And his Honour later said:
[103] The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of “what would the community expect in this case?” It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other. That is a matter for the decision-maker.
The High Court declined to grant special leave to appeal from the majority decision.[41]
[41] FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56 (24 April 2020).
As the Tribunal has remarked,[42] the majority decision in FYBR supports the proposition that it is for the Tribunal as decision-maker, to determine how decisively PC3 operates in favour of revocation of the mandatory cancellation decision, in light of the particular circumstances of the case. In general, the more serious the breach, the more it weighs against revocation, and it may even be decisive. It is hard to imagine a case where PC3 would not weigh, at least to some degree, against revocation.
[42] See for example Tsang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4319 (29 October 2020), at [63]; MKNT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4089 (14 October 2020), at [161]; Ratu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3448 (9 September 2020).
However, the seriousness of the breach is not the only factor to be considered. PC3 is not stated in absolute terms. It provides:
Where the non-citizen has been convicted of offences in Australia……it may be appropriate…to not revoke.
As noted above, the principles contained in paragraph 6.3 guide the decision-maker in the exercise of the discretion to revoke under section 501CA(4) of the Act.
Therefore, in assessing the weight to be assigned to PC3, the length of time the Applicant has spent in Australia is a relevant factor: sub-subparagraph 6.3(1)(5).
As noted above, the Applicant was born in 1981 and arrived in Australia when he was 16 months old. The “higher level of tolerance” principle contained in subparagraph 6.3(5) clearly applies to the Applicant.
The Applicant’s subjective characteristics are also relevant, and in this case, there is strong evidence that the Applicant is drug addicted and “institutionalised”.
Nevertheless, one cannot overlook the seriousness of his most recent offending. The robbery and the carjacking were committed in company with two others. Their actions terrorised a mother and her two children. It was a heinous crime. It is something for which the Applicant has expressed shame and remorse. During the hearing he was asked about his attitude to these crimes (emphasis added):
Q.These crimes, reflecting back on them, these two crimes that you committed this day, what's your opinion on them?
A.Obviously I've got remorse for doing it, you know what I mean? Like, I don't - like, I’m - I was angry with myself, you know what I mean, because, like, I've - it might sound stupid, but I've got - like, I don't like people who do things to kids or women and stuff like that, you know, and, like, I've got - like, I regret doing it, you know what I mean, and, you know, I look at it from empathy, because I imagine myself or my mum or something in that situation, and it would've been horrifying, you know, and, like, yes, like, I don't - like, if - obviously I wish I could go back and not do it, but I can't do that, you know, but I do feel for the people, you know. Like, and I do have remorse for doing it. Like, I don't - like, I've got a long criminal history, but I've never done anything like that before, like, an armed robbery or, like, took someone's car or something like, you know. I don't like - yes.
Q.And do you - are you aware of the consequences of these crimes on the woman and the jewellery store owner?
A.Yes. Yes, I am.
Q.And what are those consequences?
A.Like, you know what I mean, that lady probably won't - that lady, now when she drives her car down the street she's - at the lights or something, if someone goes to cross the road, you know what I mean, she probably freaks out at that, you know what I mean, it has a detrimental effect on someone for the rest of their life if they're not in that sort of criminal, like, circle, you know what I mean. Well, they're just not normal people, you know, like, she's probably traumatised, same as the two ladies in the jewellery shop. Like, they probably go to work every day, every time someone walks in the shop they probably get that little - you know what I mean, little nervous thought that someone might be trying to rob them or something.[43]
[43] Transcript, 2 February 2021, 29
The Applicant demonstrates in this passage a very good understanding of the impact of his offending in this case. I consider this to be a very serious offence, but it falls short of being the most egregious example of this particular crime. It appears from the transcript that the offenders allowed the mother to take her children out of the car. There was no physical harm inflicted on the mother or her children, although the emotional harm was no doubt profound. The Applicant was right to say that the women involved were “probably traumatised”. Even if not the worst example, it was nevertheless a shocking offence.
As to the robbery itself, I note that the cost of repairing the damaged cabinets and display stands within the cabinets was $21,100, although the value of goods made off with was disputed at the trial.[44] The judge found that the value of the goods taken was substantial, although he did not accept the valuation evidence provided by the prosecution, which exceeded a million dollars.[45] I also note that there were two female employees in the jewellery store at the time of the robbery, and that they were no doubt badly affected by the Applicant’s behaviour.
[44] SM3, 582.
[45] G2/30.
As noted by Justice Stewart in the passage quoted above (emphasis added):
[103] In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other. That is a matter for the decision-maker.
I note that the 2017 offences which led to the mandatory cancellation involved a sentence which was reduced significantly by reasons of an early plea and “special circumstances” relating to the Applicant’s drug addictions and long term incarceration. I also note the Applicant’s insight into the victim impact in this case.
The circumstances of this offending are not egregious to the point of making non-revocation “inevitable”. Nevertheless, I find that the expectations of the Australian community weigh firmly against the revocation of the mandatory cancellation.
Conclusion with respect to PC3
PC3 weighs heavily against revocation of the mandatory cancellation.
OTHER CONSIDERATIONS
OC1: Non-refoulement obligations
The issue of non-refoulement has no application in this case. It is therefore neutral.
OC2: Strength, nature and duration of ties
Decision-makers must have regard to the length of time a non-citizen has resided in Australia (with less weight being given where the non-citizen began offending soon after their arrival, and more weight being given to time the non-citizen has spent contributing positively to the Australian community), and the strength, duration and nature of any family or social links with Australian citizens or permanent residents: subparagraph 14.2(1) of the Direction.
The Applicant’s mother immigrated to Australia in 1982, with her mother and her infant son (the Applicant) who was born in the United Kingdom and was 16 months old when they arrived.[46] She re-partnered in Australia, but did not tell the Applicant that her new partner was not his natural father until he was about 16. The Applicant has neither met nor spoken with his natural father, who lives in England. His mother passed away last year.
[46] G10/245.
The Applicant has lived in Australia as a permanent resident for 38 years. In this time, he has not visited the United Kingdom or travelled abroad.
The Applicant responded to questioning at the hearing:
… Have you ever been to the United Kingdom? ‑‑‑ No, only when I was born over and come over.
Do you have any memories of the United Kingdom? --- No.
So do you regard yourself as Australian? --- Yes, I do. Yes.
When did you first become aware of the fact you were a British citizen? ‑‑‑‑ Probably would have been when I was about 16. I was going for a job interview and my mother was giving my - my birth certificate. I needed to get ID and that to go get a job and it had my real dad’s name on it, you know? Because I didn't know. That's when I found out, like, I thought my dad who raised me was my real dad, but - and when I - when I was 16 I found out he wasn’t, you know, because my mum had to give me the birth certificate and that’s when she said, you know what I mean, ‘You know your dad left me when I was pregnant with you in England’, you know? So, yes, that’s when it all come out, yes.
But did you know as a young child that you were born in England? --- Yes, from my sort of understanding and that I - I - yes, probably when I was young I was born in England. My cousin was born in England too. I’m not a hundred per cent sure, but yes. Yes, so, but that’s pretty much when it, like, when I found out, you know what I mean, and that, and that’s when I started, like, in my head thinking about it. Like I - because my biological dad is in England, you know, but I made - tried to contact him and that but I never - I’ve never been able to get in contact with him, so.
So you’ve tried to contact your father in England? --- Yes, a couple of times I’ve tried to look him up and that, and my nan’s brother, [my uncle] he - before he died he was over there and he tried to, like, help find him and that, yes, but I was just, yes. Like, maybe, you know what I mean? I don't know, maybe - I was thinking to myself maybe he did get in contact with me, and he just said, oh, he just doesn't want nothing to do with me or something, I don't know. Who knows, you know? Yes, but, like I never really got to meet him and that, so, I still class my dad the one who raised me as my dad and I call him Dad, you know? I probably should have told - said that, too, I the family thing. Like, he lives here in Wagga Wagga. He’s a fireman. Yes.
Did you ever consider applying for citizenship? --- I don't know. Like, I - once I started - found out all this and that, obviously I thought, oh, I should have become a citizen, you know. My mum got really upset about it saying I should have got citizenship, but I said to her, ‘You can’t - it’s not your fault’, you know, and when - I think when you come from England, I don't know, like, I think - you don’t have to get citizenship. I think it’d just be permanent residency, you know. I think that’s just, why I like - otherwise probably she would have made us all citizens or something, yes. I don't know how it works, but, yes. I watch it on the ABC, the thing, because I knew I had to come to this, you know what I mean? It showed a thing about the tribunal and that. Yes, I started watching it and try and learn about it, yes. Yes. I know it’d be bad because I know it’s pretty much cold over there all year, so, that's one bad thing about going over there.[47]
[47] Transcript, 2 February 2021, 55.
I note that the Minister’s delegate, in the decision not to revoke the cancellation of the Applicant’s visa, commented as follows:
69. [The Applicant] is now 39 years old. He has not lived in the UK since he was an infant and has in effect spent virtually the whole of his life in Australia. I recognise that, as such, he regards himself as Australian and all his personal links are with this country.
70. I acknowledge that [the Applicant] states in his Personal Details Form dated 14 February 2020 that he is ‘scared of being sent back (with) no family support’ and fears he will face problems with housing and ongoing drug addiction […]. I note that [the Applicant’s mother] stated in 2015 that [the Applicant] was ‘desperate’ to be with his family and son in Australia, and that sending him to a place where he had no support would be ‘catastrophic’ for him.
71. I recognise that having to adjust to life in another country of which he has no real first-hand experience will be very difficult for [the Applicant], especially without any personal support there. However the UK is culturally and linguistically similar to Australia and he will have access to health services, treatment and welfare services in the United Kingdom, of a standard comparable to those in Australia.
72. I find that given [the Applicant]’s lengthy residence in Australia of 38 years since the age of one, his family ties to Australia, drugs addiction and the absence of family and social support in the United Kingdom, the removal from Australia will involve hardship for him, but I do not consider that hardship will be an insuperable obstacle.[48]
[48] G2/21.
With respect, the Minister’s delegate was correct to perceive hardship for the Applicant if he is removed from Australia. As to whether it will be insuperable may seem academic, because if removed he will have to adjust, no matter how difficult that might be. I note that he has not been diagnosed with suicidal tendencies. It seems to me that the greatest danger is that he will reoffend in the United Kingdom in order to support his drug addiction, and that he will be incarcerated. Without substantial governmental or community support, and in the absence of family support, that is a very real possibility.
I note that since the Personal Circumstances Form was submitted by the Applicant, the Applicant’s circumstances have changed in two material respects. First, his mother has passed away. Secondly, his son is no longer a minor child, having reached the age of 18.
The Direction requires the Tribunal to consider the effect of non-revocation on the non-citizen’s immediate family in Australia. According to evidence presented to the Tribunal, the Applicant’s immediate family consists of:
(a)The Applicant’s father (actually his ‘stepfather’)
(b)The Applicant’s 18-year-old son
(c)The Applicant’s 35-year-old brother
(d)The Applicant’s brother’s partner
(e)His niece and nephew, the Applicant’s brother’s children
(f)Other relatives.
I will consider each in turn.
(a)The Applicant’s father (or stepfather)
The Applicant told the Tribunal that he spoke to his father every day, from which I infer that he has a positive and supportive relationship with him, being the man who raised him and who he regards as his father.[49] He said:
They’re my family, you know. I still ring them every - ring them every second day. I ring my father every day pretty much, yes.[50]
(b)The Applicant’s 18-year-old son
[49] Transcript, 2 February 2021, 54.
[50] Transcript, 2 February 2021, 43.
The Applicant’s 18-year-old son lives with the Applicant’s father, and close to his uncle, the Applicant’s brother, who lives two minutes away. The Applicant was pleased that his son was living with the Applicant’s father, given the recent loss of the Applicant’s mother. He said that his son “kept his father in line”.[51] It was unclear what this meant.
[51] Transcript, 2 February 2021, 49.
The Applicant said that he did not want to involve his son in the proceedings. When asked about the likely impact of his removal from Australia upon his son, the Applicant said:
My son's 18 now but like - yes, like I think even though it'd have probably a detrimental impact on him too, you know, like - that's why I don't (indistinct) you know what I mean, because his nan, my mum just passed away last year, he was like a bit depressed through it and that, you know, and I said to my brother, I said I don't really want to - even though it's going to have an impact on him if I get removed like of course, you know, but I didn't really want to like put him through it, you know what I mean, like I didn't want him to have that thought in his head, you know what I mean, yes.[52]
[52] Transcript, 2 February 2021, 43.
And further:
[M]y son's working with my brother, you know what I mean, he's doing the right thing. He didn't stay for his Year 12 but - because mum got sick but he did his Year 10 and he's working and that, you know what I mean. I can't be prouder, you know, like (indistinct), yes, and I miss them all. My brother, my son, my nephews, my nan.[53]
(c)The Applicant’s 35-year-old brother
[53] Transcript, 2 February 2021, 41.
The Applicant’s brother gave evidence. He confirmed that he had offered his brother a place to stay. He had also promised him a job as his assistant in a solar panel maintenance business that his brother had established. It was a paying job. He stood by his offer. The business was growing, and he needed an assistant.
The Applicant’s brother was sincere in his desire to assist his brother. He said that he had discussed the matter with his partner and that she was supportive. He said that he loved his brother and wanted to look after him as he had promised his mother to do so.[54] Each of his two children have their own room, but if the Applicant was to be accommodated, they would share for the next few years. They would make do.
[54] Transcript, 3 February 2021, 79.
The Applicant’s brother was not concerned about the added burden of having a brother with a criminal record living in the house and did not fear any additional police attention. He has nothing to hide. He has brought his children up to like and have respect for the police.
He said that he was not familiar with the details of his brother’s offending and said that his mother had been more intimately involved with such matters. When the most recent offending was explained to him, he said that this was not his brother but the drugs. He was confident that if his brother remained drug free, there would be no repetition of such behaviour.
The Tribunal was left with no doubt as to the strength of his determination to assist his brother, even at some considerable inconvenience for his family. The Tribunal has considered this matter above in relation to PC2 (best interests of minor children).
The fact that the Applicant’s brother is prepared to provide accommodation for the Applicant highlights the strength and nature of the Applicant’s ties to Australia.
The Applicant told the Tribunal that his mother had left the house to him, his brother, and his son, and that that they would inherit it when his father passed. He said he prayed that that was not for a long time but when it happens, they would have the house.[55]
(d)The Applicant’s brother’s partner
[55] Transcript, 2 February 2021, 52.
There is little evidence regarding the relationship, if any, between the Applicant and his brother’s partner. The Applicant’s brother told the Tribunal that his partner is a community services worker and works with children with autism.[56]
(e)The Applicant’s brother’s children, his niece and nephew
[56] Transcript, 3 February 2021, 77.
I have considered this relationship above in the context of PC2.
(f)Other relatives
The Applicant said he had his Nan, three nieces and two cousins in Melbourne. He did not include his Melbourne family in his Personal Statement, and he said at the hearing that he did not have much contact with them at all.[57]
[57] Transcript, 2 February 2021, 46-48.
Conclusion on OC2
There is no doubt that the Applicant has substantial family connections in Australia, as one would expect given he has lived here all his life, except for the first 16 months. It is also true that his long periods of incarceration have taken a toll on these relationships. I note that neither his father nor his son gave evidence to the Tribunal, although it would not be appropriate to draw an adverse inference from this fact. I note that with the recent loss of his mother, the family is in mourning.
The evidence before the Tribunal supports a finding that the Applicant has a good relationship with his brother. Much turns on the depth and strength of that relationship.
Overall, I find that the strength, nature and duration of the Applicant’s ties to Australia are very substantial and that this weighs heavily in favour of revocation of the mandatory cancellation decision.
OC3: Impact on Australian business interests
There is no evidence of any impact on Australian business interests that would significantly compromise the delivery of a major project or delivery of an important service in Australia. This factor is neutral.
OC4: Impact on victims
There is no evidence before the Tribunal relating to the impact on any particular individual. I note the observation by the sentencing judge that the victims of his recent offending would have been terrified by his conduct. However, I find that this consideration is neutral.
OC5: Extent of impediments if removed
The Tribunal is required to consider the extent on any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
As noted above, the Applicant has not been in the United Kingdom since June 1982, when he was taken from that country by his single mother at the age of one. He is undoubtedly a non-citizen, but he has lived in Australia for all but the first year of his life spanning four decades, which is significant.
No information has been put to the Tribunal relating to the services immediately available to the Applicant if removed to the United Kingdom, so as to avoid him falling into homelessness. There is no evidence before the Tribunal as to the sort of accommodation he may be able to obtain, even in the short term while he establishes himself. There is no evidence before the Tribunal as to the practical support that the Applicant may receive if removed to the United Kingdom.
The Applicant told the Tribunal that he has no family or friends in the United Kingdom. He believes that his natural father is in the United Kingdom, but he has had no contact with him throughout his life. Overall, it is highly doubtful whether the Applicant has the life skills to negotiate the health and social services of a foreign country without any family assistance.
I note that the Tribunal is required to consider the impediments he is likely to face in the context of what is generally available to other citizens of that country. I do not think that his particular difficulties (as a newly arrived long term prisoner with substance abuse issues) would be experienced by other citizens of the UK community seeking medical or social services. His particular circumstances put him in a special category.
I raised with the Respondent the impact of the present pandemic on the British National Health Service. She indicated that her instructions are that the Department will only return a person to their home country where it is safe to do so, and in consultation with the receiving country. She submitted that the risk raised by COVID-19 in Australia is comparable to other countries. She was instructed that currently in relation to removals to the UK there are two separate streams on which a person can be removed and that is either by commercial flight or any charter flight. She was instructed that the Department had arranged several escorted chartered flights to the UK over the last year. However, the most recent of those which had been scheduled for January 2021 was cancelled at the request of the UK authorities following the tightening of travel restrictions.
At the request of the Tribunal, the Respondent supplemented her oral submissions with a further written submission provided a few days after the hearing, for which I am grateful:
[T]he Respondent submits that the fact of the COVID-19 outbreak should not be given significant weight in considering the extent of impediments if removed, as:
(a) the Applicant has not identified that he is in an at risk cohort for the virus and is in general good health;
(b) that the Applicant will have access to the United Kingdom public health system;
(c) as stated in oral submissions on 3 February 2021 the Respondent acknowledges that the Applicant may be subject to an additional period of immigration detention due to COVID-19 but the length of this period is purely speculative; and
(d) an additional period of immigration detention does not fit squarely within any of the other considerations contained in Direction 79 and should be considered separately.
The Respondent notes that the Tribunal has recently considered COVID-19 in the United Kingdom and the extent of impediments if removed in Hood and Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs (Migration) [2020] AATA 1123 and determined the extent of impediments if removed weighed slightly in favour of the Applicant, due to a number of factors including that the Applicant may face a prolonged period in detention due to COVID-19 travel restrictions.
As noted, above, even without the COVID-19 complication, the Tribunal is not aware of the level of social, medical and/or economic support available to the Applicant if he is removed to the United Kingdom. I take note of the fact that the British National Health System is generally esteemed, and that the country has a strong social welfare system. There is however no evidence before the Tribunal as to the impact of the present COVID-19 pandemic; nor is the Tribunal able to predict what level of services may be available to the Applicant in one, two or three years’ time, when any removal is likely to take place, depending on whether the Applicant is released to parole or required to serve out his full sentence, which ends in 2024.
When pressed on this point, the Respondent’s representative reminded the Tribunal that the onus is on the Applicant to show that there is another reason why the mandatory cancellation of his visa should be revoked, and it is not for the Respondent to provide such information. This matter has been discussed above.
The Applicant has lived for a long time in the prison system and has spoken about being “institutionalised”, according to a Sentencing Report dated 9 July 2019 prepared by Corrective Services NSW.[58] When sentencing the Applicant for his last and most recent offending, the judge took account of the fact that he was to some extent institutionalised.[59]
[58] SM3/631.
[59] SM3/675.
The concept of institutionalisation is important. It suggests an aversion to living freely outside a controlled environment, either due to a lack of confidence or a lack of basic living skills. Some of the Applicant’s evidence to the Tribunal gave credence to the notion that he is to some extent institutionalised. He has no employment record to speak of except for a short period washing and detailing cars.
The submission that the Applicant is “in general good health” is difficult to reconcile with his present methadone treatment for heroin addiction, or the psychological disposition of one who is trending towards institutionalisation.
Based on the evidence put to the Tribunal, it is open to infer that the Applicant suffers from a chronic addiction to heroin and is undergoing treatment which appears to be effective. I noted above that the Tribunal has not been provided with sufficient information to assess the efficacy of methadone treatment for his addiction, or to assess his behaviour in prison, and to that extent the decision-making of the Tribunal is sub-optimal. From the material that has been placed before the Tribunal, I share the sentencing judge’s concern that the Applicant has become institutionalised after years in prison and has been unable to find employment when he was previously released. I note the learned judge’s comment quoted below:
To say that this has been the blight of his life and those with whom he has had contact is an understatement. What is more important it shows the failure of our society. He is literate but he is not able to discern any sign of intellectual disability or cognitive deficit, but quite clearly he has significant problems not having had the opportunities from a proper education that most people in our society had received.[60]
[60] G2/38.
With respect, I do not take the judge to be saying that the criminal offending for which he imposed a term of imprisonment was the fault of anyone other than the Applicant. But the failure of society to which the judge alludes would be aggravated by the removal of the Applicant from Australia. I find that the Applicant is likely to experience severe challenges if removed from Australia to the United Kingdom, and that this weighs firmly in favour of revocation of the mandatory cancellation.
WEIGHING THE FACTORS
As mentioned, the question for the Tribunal is whether there is ‘another reason’ why the original decision should be revoked.
One of the primary considerations (PC2) and three of the ‘other’ considerations (OC1; OC3 and OC4) are neutral.
Two of the primary considerations (PC1 and PC3) weigh against revocation of the mandatory cancellation. PC1 weighs firmly against revocation, PC3 weighs heavily against revocation.
Two of the ‘other’ considerations (OC2 and OC5) weigh in favour of revocation; OC2 weighs heavily in favour of revocation and OC5 weighs firmly in favour of revocation.
Primary considerations should generally be given greater weight than the other considerations.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23], Colvin J emphasised that the other considerations are not secondary or subordinate. His Honour stated:
Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply. [Emphasis added]
I have reviewed the evidence before the Tribunal against the relevant mandatory considerations under the Direction, and the question for the Tribunal comes down to whether any of the considerations should be regarded as of the greatest weight in the circumstances because it or they are ‘outside the circumstances that generally apply’.
I find that in the special circumstances of this case, two of the ‘other considerations’, OC2 and OC5, are to be accorded in combination the greatest weight in this calculation. In combination, they outweigh the combined effect of primary considerations PC1 and PC3.
For these reasons, I find that there is ‘another reason’ why the mandatory cancellation decision should be revoked.
The reviewable decision is set aside and, in substitution, the mandatory cancellation of the Applicant’s Class BF transitional (permanent) visa is revoked.
I certify that the preceding one hundred and seventy-seven (177) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
......[sgd].........
Associate
Dated: 15 February 2021
Date of hearing: 2 & 3 February 2021 Solicitors for the Applicant: Self-represented Solicitors for the Respondent: Ms L Hargraves, Clayton Utz
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